www.elsblog.org - Bringing Data and Methods to Our Legal Madness

31 October 2008

Over the years, a lot has been written about the risks of blogging during your pre-tenure years. See, most recently, Verity Winship, "Blogging without Tenure." Well, I blogged quite a bit as an untenured faculty member. And fortunately, earlier this week I was recommended for promotion and tenure by my Indiana colleagues. It is unlikely that blogging damaged my career because (I am told) the vote was unanimous.

As a blogger, I want to publish the following section of my P&T personal statement, so that others that come after have at least one concrete data point to consider:

My inclusion of blogging under the
scholarship heading is not meant to test the proposition that blog posts are
scholarship. Rather, blogging has generated
a wide range of professional opportunities for me and enhanced my visibility
among legal academics. Since the spring
of 2006, I have been a regular blogger with the Empirical Legal Studies (ELS) Blog. In June 2008, I also joined the Legal
Professions Blog. Collectively, I have more
than 200 blog postings, a substantial number of which discuss issues related to
my legal scholarship. Many of my ideas
for scholarship originally appeared in some form on the ELS Blog and were
further refined by reader comments. Several
references to my work in the mainstream media were the result of reporters perusing
the blogs. I believe that blogging has
been a very good investment of time and has generated increased visibility for
Indiana Law. A complete list of my posts is located in Attachment 7.

So there you have it. I blogged because I wanted to be fully engaged in the world of ideas. I also followed a few simple principles, which I will continue to follow: (a) don't post half-baked ideas that attack serious ideas -- bake them fully, and then post; (b) blog about ideas I want to specialize in (with a few exceptions), which creates synergies with serious scholarship; (c) treat other people will respect and be ready to concede when someone else has the better of the argument or evidence -- getting it right is more important than being right.

Of course, Dan Drezner remains a cautionary tale that goes in the other direction ... though Dan came of the process with his self-respect and a tenured job at another school within few short weeks. Despite the folklore, intellectual timidity is not necessarily the best strategy for getting tenure or, more importantly, being comfortable in your own skin.

Two of my valued colleagues at Indiana who joined the faculty with me in 2003 also got the good news this week -- we went 3 for 3!

"Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. They have not, however, taken care to identify the phenomenon that they are measuring in clear and convincing terms, or to evaluate different measurement approaches for their suitability to the task at hand. In this paper, we diagnose recurring weaknesses of the existing empirical literature, and we propose a measurement approach of our own that offers significant improvements over some of the most popular alternatives.

"First, we identify the major conceptual and methodological obstacles to the empirical measurement of judicial ideology. Foremost among the conceptual challenges to be faced are the difficulty of defining ideology and the associated challenge of disentangling ideological and nonideological preferences. The failure of empirical researchers to confront this challenge is a fatal one because it is impossible to design and select appropriate tools for the measurement of a phenomenon that has not been properly specified.... Second, we discuss the strengths and weaknesses of different measurement approaches, and their suitability to different types of research questions.... Third, we perform a head-to-head competitive evaluation of two popular measurement approaches and a third approach of our own devising.

"We test the predictive power of our approach against that of two popular proxy measures of judicial ideology-namely, party of appointing president and judicial "common space scores." For testing purposes, we use a data set that we coded consisting of approximately 1,900 asylum cases decided by the Ninth Circuit over a ten-year period. We find that common space scores perform only slightly better than party of appointing president at predicting actual judicial voting. Moreover, both proxy measures yield almost identical estimates of the impact of ideology on actual judicial voting."

21 October 2008

The Seventh Circuit heard the oral argument this morning in Lott v. Levitt. The panel includes Judges Ripple, Evans, and Sykes. Professor Jeffrey Parker of George Mason Law School argued for Lott. Slade Metcalf of Hogan & Hartson argued for Levitt.

Evans and Sykes asked all the questions. Ripple remained silent. I have only glanced at the briefs, but based on the questions and comments during the oral argument, Lott’s chances do not look very good. The audio file of the argument should be available on the Seventh Circuit’s website later today.

20 October 2008

Neil Buchanan (GWU) uses U. Mich. Law School alum data in his paper that explores the complex relation between gender and lawyer salaries. His paper reports that:

"... fathers
tend to receive higher salaries than non-fathers (a "daddy bonus"). In
addition, mothers earn less than non-mothers (a "mommy penalty"). There
is also some statistical support for the inference that there is a
penalty associated purely with gender (women earning less than men,
independent of parenthood), another result that is unique to the
literature.

Analyzing
full- or part-time status as well as work hours also suggests a key
difference between women and men. Those who take part-time status are
almost entirely women who take on child-rearing duties, and they reduce
their work hours by an average of approximately thirty percent. These
statistical results are, however, significantly less reliable because
of the very small numbers of respondents (male or female) who work less
than full time."

16 October 2008

Like everyone else, I am struggling to get my head around exactly what happened to produce our current financial crisis. That is a precondition of anticipating the longer term consequences. In a single paragraph, this is what (I surmise) happened.

Sometime during the 1990s, momentum began to build on Wall Street for securitizing home mortgages in new and exotic ways. Residential real estate seemed like an attractive business because the yields were decent, the historical default rates were low, risk of loss was mitigated by pooling thousands of mortgages (which were, themselves, divided into parts), and the underlying assets (homes) generally went up in value, sometimes by a lot in major metropolitan areas. Institutional investors had an insatiable appetite for these debt instruments, which were graded as safe by all the major rating agencies. Further, respected companies like AIG wrote insurance on these instruments on the theory that they would never have to pay. All the risk was supposedly hedged by "credits swaps," which are fancy and unregulated contracts between private parties. So money gushed in. Because virtually any loan could be sold the next day to Wall Street (who, in turn, could repackage them for a large profits within a short time), banks and other mortgage originators could make money with no risk (zero risk!). This cycle continued even though the pool of mortgage applicants became weaker and weaker--eventually people with (a) bad credit, (b) no assets, and (c) no job. This had the predictable effect of driving up the price of real estate to a frothy bubble.

If we want to get back to good old-fashion, sane capitalism where risk is actually assessed before a lender gives a borrower money (and I do), we need to know what the underlying asset (a home) is really worth.

Here, the news is not good. According to this story in the New York Times, the price of real estate could tumble throughout 2009. Frankly, this is where analogies to the 1930s seem like they have some traction. When an average person's largest asset turns out to be a terrible investment, they have lost a lot of money in the stock market (any thoughts about privatizing Social Security now?), and banks are failing left and right, it has a devastating effect on society's ability to pool risk--all the money ends up in the mattress, so to speak. No surprise, people like my grandparents who lived through the Great Depression tended to be very cautious and risk averse with money.

Frankly, the issue now is not how to regulate Wall Street--the investment banks are gone. It is how to unwind this mess. The larger tragedy here is not the loss of money; it is the loss of trust by ordinary people in basic financial and commercial institutions. They worked hard and played by the rules. Yet many of their homes will be worth less than what they paid for them, and retirement seems beyond reach. Unregulated capitalism failed. Like it or not, government is the only entity that can fill the breach.

These two stories from This American Life, both 1-hour long audios, are the two best resources I have found on these topics:

Law schools are part of a production function for entry level
lawyers. Therefore, if law schools alter their admissions practices,
the character and complexion of the hiring pool can shift
in significant ways.

On the input side, the data are crystal clear: over the last
fifteen years, the rankings arms race has pushed U.S. law schools
toward a pure numbers approach to admissions. The more interesting
question, however, is whether prestige-conscious law firms are now,
inadvertently, experiencing any fallout. First the data.

Law schools operate in an environment of supply and demand and are
famously counter-cyclical. When Silicon Valley was booming in the late
90s, law school applicants plummeted. When the economy faltered in the
early 90s or after 9/11, applicants spiked. Therefore, to examine how
admissions practices have changed over time, it is important to pay
attention to the underlying applicant pool. Below are trend lines for
median LSAT scores by USNWR rank for 1994 and 2007, which reflect
classes that entered in the fall of 1993 and 2006 respectively. During
those two admissions cycles, the number of applicants was virtually
identical: 89,600 (1994) and 88,700 (2007).

Obviously the blue line (2007) is higher than the orange line
(1994). In fact, despite slightly fewer law school applicants, the
average median LSAT increased by 2.18 points (std. dev. of 1.99). For
the record, only three schools fell out of Tier 1 between 1994 and
2007. And it cannot be explained by the ABA policy shift that
instructs law schools to no longer average LSATs for reporting 25th,
50th, and 75th percentile figures, thus slightly pumping up the volume
of high LSAT scores. That change was not enacted until the summer of 2006.

Here is the same analysis for UGPA (1994 data came from the Princeton Review, 2007 from the ABA):

Although we might chock some of the higher UPGAs (avg. of +.17, std.
dev. of +.12) on grade inflation between 1994 and 2007, it is likely
that schools were also trying to maximize this number. More after the jump ... .

“Because we conducted our research under the auspices of the
IRB at Massachusetts General Hospital, we were
required to use the hospital’s standard ‘informed consent’ form, which covers
all of its highly diverse research—most of which involves drug trials or new
medical and surgical procedures. Consequently, even though we were only talking
to people in an office [about violent video games], we were obligated to tell
the participants in our focus groups that if they suffered any side effects
from our conversations, they should immediately go to the nearest hospital emergency
room!”

06 October 2008

This is the last call for a workshop Lee Epstein and
Andrew Martin will be teaching later this month. On Friday, October 24, 2008
through Sunday, October 26, 2008 Lee Epstein and Andrew Martin will be teaching
a workshop called "Conducting Empirical Legal Scholarship: The Advanced
Course." This workshop will be held
in Chicago, and is co-sponsored by Northwestern University and Washington
University. The workshop is now open for registration at:

The workshop is designed for those who have some
experience with empirical legal research, and an understanding of elementary
statistics (at the level taught in the introductory workshop). Topics to be
covered will include: multiple regression, regression models for limited dependent
variables, presenting results from non-linear models, data visualization and
graphics, and matching methods for causal inference.

Today's NYT includes a story (p.B4) on how large companies are far less likely to "use arbitration clauses in
contracts with each other than they are in contracts with consumers." The Times story pivots on a study by Ted Eisenberg (Cornell), Geoff Miller (NYU), and Emily Sherwyn (Cornell). According to the authors, the asymmetric use of arbitration clauses flows from an effort to use "arbitration as a way of avoiding class action litigation. Because it is not worth it to a single upset consumer to sue a
big company, the only thing those companies fear is your
having a plaintiffs’ lawyer aggregate you and people like you into a
class action.”